Direct Oral Suction During Circumcision Needs More Scrutiny: 2nd Cir.

Answer: When the topic of rabbis providing orally assisted circumcisions crosses your desk twice -- first as a deceased baby case, then as a Second Circuit case addressing a New York City regulation passed in the wake of the tragedy.

The practice at issue is called metzizah b'peh, which involves removing blood from the circumcision wound with the rabbi's mouth. The ritual continues to be widespread in Orthodox communities in New York City, despite previous cases of babies contracting or dying from herpes after the ritual, including three cases tied to a single rabbi who has since been banned from performing the procedure.

The Regulation

Shortly after a baby passed away in 2012 after contracting herpes, the New York City Board of Health started pushing for increased regulation on orally assisted circumcision, citing at least 11 cases where infants has contracted herpes from the ritual between 2004 and 2011. Two deaths and two cases of brain damage were also tied to the practice.

As a result, the city passed a regulation that requires parental consent in writing. The consent form must state:

"I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death."

The Second Circuit held that the regulation is not neutral as it purposefully and exclusively targeted a religious practice for special burdens. As such, strict scrutiny should apply:

We vacate the district court's order denying plaintiffs' motion for a preliminary injunction and remand for the district court to consider whether plaintiffs have shown a likelihood of success on the merits applying strict scrutiny. Acknowledging the weighty interests at stake in this litigation (the plaintiffs' in the free exercise of their faith and the Department's in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this standard, believing that careful adjudication will benefit in the first instance from the district court's comprehensive analysis.